Employees State Insurance Corporation Ltd. and Anr. vs Sudha Dhobriyal and Anr.

THIS First Appeal has been filed by Employees State Insurance Corporation and another (hereinafter referred to as the ''Appellant Nos. 1 and 2'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ''State Commission'') which had decided the complaint of medical negligence in favour of Smt. Sudha Dhobriyal, Respondent herein and the original complainant before the State Commission. Respondent in her complaint before the State Commission had stated that she had been working with Onida Savak Ltd., Noida and her employer was regularly depositing monthly contribution to Appellant No. 1 under the Employees State Insurance Act and she was given insurance coverage by Appellant No. 2. In April, 1997 she visited Appellant No. 2/Hospital for medical examination in respect of her pregnancy wherein no abnormality was detected. When she went for a routine check -up on 20.1.1998 even though she did not have any labour pains, she was advised to be admitted to the hospital for conducting a caesarean section although both she and her husband protested against the same and suggested that they would prefer to wait for a normal delivery. However, Appellant No. 2/Hospital conducted the caesarean section without her consent or that of her husband on that date. Because of the negligent manner in which the operation was done without the surgical equipments being properly sterilized and the operated parts not being stitched, she contracted a severe infection which spread throughout her system and both her lower legs turned black. She also had intermittent fever. She was thereafter referred to Jaipur Golden Hospital, Rohini for lower limb vessels study and in the report sent by that hospital, no evidence of any deep vein thrombosis was found. Appellants even thereafter did not give due care or medical treatment to the Respondent as a result of which her condition deteriorated and after two weeks she was sent to All India Institute of Medical Sciences (AIIMS) where the doctors found that there was gangrene in both legs because of post -operative infection for which Appellant Nos. 1 and 2 were responsible. It was further contended that even at AIIMS, there was negligence in her treatment because of which her lower leg limbs had to be finally amputated and she became physically handicapped for life. Respondent filed various representations including to the Government of India but on not receiving a satisfactory response, she filed a complaint before the State Commission on grounds of medical negligence and deficiency in service against Appellants and requested for compensation amounting to Rs. 16,20,000 which included Rs. 1,00,300 on account of financial loss of salary, bonus, increments, etc., Rs. 10 lakh due to loss of parts of her body, Rs. 5 lakh for mental agony and harassment and Rs. 20,000 as costs including interest @ 18% per annum.

APPELLANTS on being served filed written, submissions denying the allegations of medical negligence. Specifically, Appellant No. 2 stated that when the Respondent came to the OPD on 20.1.1998, she was diagnosed as a case of postdated pregnancy with preclamtic Toxemia and leaking PV which is a potent source of infection, Because of these complications, in the interest of her health as also that of her unborn child, she was admitted to the hospital for induction of labour and all these facts were explained to her. It was only when the labour did not progress satisfactorily and meconium was observed that a caesarean section was performed with the consent of her husband and her brother in a fully sanitized operation theatre where the instruments were duly sterilized and, therefore, it is not correct that she developed any infection during the surgery. In fact, since Respondent had come to the hospital on 20.1.1998 with a ruptured membrane, had already been exposed to infection outside the hospital and thereafter she developed deep vein thrombosis which is a rare though known occurrence in post -delivery patients. Since her condition required highly specialized surgical intervention which was not available in Appellant/Hospital, it was in the best interest of the patient, she was referred to the Department of Vascular Surgery in AIIMS for further treatment. It was also contended that only the toes and not the lower legs of the Respondent were amputated. After this surgery, she was declared fit and had joined her duties with her employer where she is still working. Aiims (Proforma Respondent No. 2 herein) stated that since no charges were levied by the Institute as consideration for the professional services rendered to the Respondent, the case against them does not come with the purview of the Consumer Protection Act, 1986. It was further submitted that when the Respondent was transferred from Appellant No. 2/Hospital, her health condition was very poor and after thorough investigations it was noted that there was local infection and the appropriate suturing of the caesarean section had not been done which was thereafter done at the Aiims. It was also noted that she had acquired gangrene in both lower legs upto the knees which the doctors at Aiims tried to manage by adopting a conservative line of action without conducting a surgery but at a later stage when this became necessary, part of her lower limbs had to be amputated. There was therefore no deficiency in service or medical negligence in the treatment of the Respondent at Aiims and she was treated by highly qualified doctors applying their best professional judgment.

THE State Commission after hearing the parties and on the basis of evidence produced before it concluded that AIIMS was not guilty of medical negligence because from the day of her admission therein i.e. on 6.2.1998 till her discharge in March, 1998, she was given the best possible treatment by highly skilled doctors and specialists at AIIMS. Unfortunately, amputation became inevitable at that Institute because the Respondent''s condition had already deteriorated to such an extent due to severe infection at Appellant No. 2/Hospital that amputation of the lower limbs became inevitable. So far as the Appellant Nos. 1 and 2 are concerned, the State Commission jointly and severally held them liable for the grossest kind of medical negligence which resulted in the amputation of lower limbs of the Respondent. The relevant part of the State Commission is reproduced: OP No. 2/ESI Hospital has not come up with any convincing explanation as to what was the cause for signs and symptoms of venous thrombosis and wound infection immediately after performing caesarean section. According to them thrombosis is more common in puperal patients when it may present in one of the severe forms. In support of this OP No. 2 have relied upon medical literature contained in Oxford Text Book of Surgery by Peter I Moris, Vo. I that some patient with congenital or acquired abnormalities in fibriolite system are more prone to intravascular thrombosis therefore ante or post partum infection may predispose to septic thrombo phelabitis.

We are sorry to point out that no such situation arose in the case of the complainant as she did not suffer from any congenital or acquired abnormalities in the fibriolyte system and therefore the only inference that can be drawn as to the development of intravascular thrombosis is that there was grossest kind of negligence in performing the caesarian section in such imperfect manner that even some products of conception were not removed and even the wound was not sutured and these factors caused the post -operative complication viz. septic thrombo phelabitis. Had there been no negligence while performing the caesarean section and not taking post -operative care complainant would not have developed such severe infection and chloroquine reaction that led to the onset of thrombosis.

IN view of the above, the State Commission directed Appellant Nos. 1 and 2 to jointly and severally pay the Respondent a lump sum compensation of Rs. 20 lakh which would include the cost of litigation and thus meet the ends of justice. Hence, the present First Appeal.

Learned Counsel for both parties made oral submissions. Counsel for Appellant Nos. 1 and 2 stated that State Commission erred in concluding that Appellants were guilty of medical negligence in the treatment of the Respondent as a result of which infection had set in and she had to get her lower limbs amputated. On the other hand Appellants had produced credible evidence before the State Commission including the case history of the Respondent wherein it has been clearly noted that there were indications of septicemia with complications including leaking membranes at the time of her admission on 20.1.1998 and she underwent caesarean section in the interest her health and her unborn child. There were no complications following this surgery and she was administered the required antibiotics. It was only on the 3rd day that the operation site was found infected with pus collection for which also medication was done. On the 7th day as soon as it was noted that there was bluish discolouration of her toes and Pallor and Oedema in both lower legs, an investigation was conducted where a diagnosis of venous thrombosis was made which is a common though rare condition following surgical procedures for which she was given the required treatment and only when this could not be controlled on 22.1.1998, she was referred to AIIMS for expert opinion and surgery and at the time of her admission, her general condition was stable and the toe movements both active and passive were normal though skin of the distal toes was discoloured. AIIMS confirmed that she was having Deep Vein Thrombosis which occurs in post -delivery patients. Ultimately, it was not the entire lower limbs but the toes which have to be amputated. It was also reiterated that Respondent''s employer had confirmed that she has resumed her duties and, therefore, her contention for which she sought compensation suffered permanent handicap because of which she could not continue work, is not borne out by the factual evidence on record. The State Commission erred in not taking cognizance of these facts and awarding a compensation for an amount of Rs. 20 lakh which was even more than what Respondent had requested for i.e. Rs. 16,20,000.

COUNSEL for Respondent contended that State Commission had rightly concluded that Appellant Nos. 1 and 2 were guilty of medical negligence and deficiency in service. Counsel for Respondent also referred to the written statement filed by AIIMS wherein it was clearly stated that at the time of her admission, she was in very bad shape and had to be admitted to casualty. She had already developed gangrene of both lower legs upto the knees and an examination by the Gynaecologist consultant indicated that there was local infection, gaping of wound upto rect us sheath and that her uterus was enlarged to 12 weeks size with cervical OS open and products of conception were found retained in the uterus. Therefore, a surgical procedure had to be undertaken called as ''Vacuum Aspiration of the Uterus'' to remove the remaining products of the conception which clearly indicated that the caesarean section was not properly done by the Appellant/Hospital. It was also confirmed that the Respondent had been suffering from gangrene and once the line of demarcation occurred that part of the lower limb had to be amputated as a result of which, as declared by AIIMS, she was declared 50% physically impaired. Appellant Nos. 1 and 2''s contention that Respondent had been admitted to their hospital on 20.1.1998 in very poor medical condition with signs of pre -clamtic Toxemia and ruptured membrane is not borne out by the documentary evidence on record. The State Commission appreciating the mental agony, harassment, financial expenditure as also the permanent physical handicap suffered by the Respondent had rightly given her enhanced compensation of Rs. 20 lakh. Therefore, the present First Appeal having no merits deserves to be dismissed. We have heard learned Counsel for both parties and have carefully considered the evidence on record. The fact pertaining to the Respondent''s pregnancy and her admission in the Appellant No. 2/Hospital wherein she was operated for caesarean section is not in dispute. It is also a fact that following the caesarean section, post -operative complications occurred including onset of gangrene for which she was referred to AIIMS where ultimately she had to undergo for amputation of a part of her feet. Appellants have contended that in fact the Respondent came in very poor medical condition with ruptured membrane and, therefore, the infection was already there in her system prior to the caesarean section. However, from the documents on record including the case history of the Respondent, we find that there is no mention that the Respondent had ruptured membrane. Appellants'' contention that Respondent was actually suffering from Deep Vein Thrombosis which is a post -operative complication not related to any negligence in post -operative care also does not inspire much confidence because Jaipur Golden Hospital where she was referred to after both her lower legs started turning black for lower limb vascular study clearly stated that there was no evidence of Deep Vein Thrombosis. We further note that although the Respondent''s condition kept on deteriorating, she was referred to AIIMS only on 3.2.1998 i.e. two weeks after her caesarean surgery, by which time it had become difficult to treat the gangrene through conservative methods and amputation had to be resorted to. It is further on record that AIIMS in its written statement had stated that there were remnants of the conception in the uterus which had caused the infection and the operation site was also not properly sutured. All these are clearly indicative of medical negligence on the part of the Appellant/Hospital which led to infection spreading throughout her system and causing her immense agony. Appellants'' contention that Respondent was not permanently handicapped is also not correct since she did have to undergo amputation for a part of her lower limbs and as certified by AIIMS, she became 50% physically handicapped. Keeping in view these facts we agree with the State Commission that Appellant Nos. 1 and 2 were jointly and severally responsible for medical negligence and deficiency in service. We note that a lump sum amount of Rs. 20 lakh has been awarded by the State Commission as compensation though the Respondent had sought compensation amounting to Rs. 16,20,000 i.e. Rs. 1,03,000 for financial loss on account of her salary of two years, bonus, increments, keeping maids, etc., Rs. 10 lakh due to loss of parts of her body, Rs. 5 lakh for mental agony and harassment and Rs. 20,000 as costs. We agree that Respondent is fully entitled for compensation of Rs. 10 lakh due to loss of parts of her body, Rs. 5 lakh for mental agony and harassment and Rs. 20,000 as costs. However, compensation of Rs. 1,03,000 on account of salary, bonus, increments and for household help is not sustainable since no proof of these losses have been produced. Further, it is fact that Respondent has now resumed her duties and is, therefore, presently employed. To sum -up, while upholding the order of the State Commission regarding the medical negligence and deficiency in service on the part of Appellant Nos. 1 and 2, we reduce the total awarded amount of Rs. 20 lakh to Rs. 15,20,000 only for the reasons stated above and direct Appellant Nos. 1 and 2 to jointly and severally pay the same to Respondent within six weeks from the date of receipt of this order failing which the entire amount would carry interest @ 9% per annum from the date of filing of the complaint.